SHRI BASANAGOUDA BHIMANAGOUDA POLICEPATIL v. SMT. SHAVANTREVVA VEERANGOUDA POLICEPATIL

SMT. MABOOBI W/O. MABOOBSAB KADEMANI, AGE: 35 YEARS, OCC: AGRICULTURE, R/O: BINNAL, TQ: YALABURGA, DIST: YELABURGA. (BY SRI SANGRAM S. KULKARNI, ADVOCATE FOR SRI V. P. KULKARNI, ADVOCATE FOR R1, R2 AND R3; APPEAL ABATED AN AGAINST R1) - RESPONDENTS Digitally signed by VINAYAKA B V - 2 - NC: 2024:KHC-D:571 RSA No. 6056 of 2012 THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF C.P.C., AGAINST THE JUDGMENT AND DECREE DATED 20.10.2011 PASSED IN R.A.NO.60/2011 ON THE FILE OF THE DISTRICT AND SESSIONS JUDGE, KOPPAL, DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT DATED 18.04.2011 AND IN O.S.NO.79/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., YELBURGA, DISMISSING THE SUIT FILED FOR DECLARATION AND INJUNCTION & ETC. THE DECREE PASSED THIS REGULAR SECOND APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT The appellant has challenged the concurrent finding recorded by both the courts that he is not entitled to the relief of declaration and injunction in respect of the suit schedule property.

For the sake of convenience and easy understanding, the parties shall be referred to as they were arrayed before the trial court. The appellant was the plaintiff while the respondents were defendants before the trial court.

3. The plaintiff claimed that he was the owner of the suit schedule property. He claimed that suit property was earlier handed over to the village office of Walikar and that his grandfather was rendering the service of office of Walikar and thereafter occupancy rights was granted in favour of his - 3 - NC: 2024:KHC-D:571 RSA No. 6056 of 2012 grandfather and others. He claimed that his grandfather challenged the order by filing a revision petition before the Sessions Court at Raichur and the revision was allowed and occupancy right was exclusively granted in favour of his grandfather. He claimed that his grandfather was owned the properties and to avoid future disturbances, he made a family arrangement in terms of which the suit property was granted to the plaintiff. He claimed that defendant no.2 was brother of his grandfather while the defendant no.1 was his wife who had no issues. He claimed that defendants had immense love and affection towards him and treated him as their own son. The plaintiff claimed that suit property was transferred to his name when he was still a minor and the defendant no. 2 was shown as his guardian. However, the defendant no.2 thereafter hatched a plan to snatch away the suit property and managed to get his name entered in the revenue records by deleting the name of plaintiff. The defendant no.2 thereafter filed a suit against his father and his grandfather and that they contested the suit where they claimed that suit property was allotted to the share of the plaintiff. The plaintiff therefore claimed that defendants had no title to the suit property and prayed that he - 4 - NC: 2024:KHC-D:571 RSA No. 6056 of 2012 be declared as the owner of the property and for consequential relief of injunction.

The defendants contested the suit and claimed that the suit property fell to their share and that it was given towards maintenance of defendant no.1, however without their notice and knowledge, the father of the plaintiff colluding with the revenue authorities got the name of the plaintiff entered in the revenue records.

On the basis of these contentions, the trial court framed the following issues. ISSUES 1) Whether plaintiff proves that he is owner and possessor of suit land? 2) Whether defendants prove that suit land was fallen to the share of defendant No.2 and it is given to defendant No.1 towards her maintain by defendant No.2? 3) Whether plaintiff proves the alleged obstruction? 4) Whether plaintiff is entitled for relief sought? 5) What order or decree?

The plaintiff was examined as PW1 and he marked Exs.P.1 to P.4. He also examined two witnesses as PWs.2 and - 5 - NC: 2024:KHC-D:571 RSA No. 6056 of 2012 PW3. The defendant no.1 was examined as DW1 and defendant no.2 was examined as DW2 and they marked Exs.D.1 to D.20.

Based on the oral and documentary evidence, the trial court held that defendant no.2 proved that the suit property fell to his share and that he had given it away to defendant no.1 for her maintenance and that the name of defendant no.1 was entered in the revenue records for the year 2000-2001 to 2010-2011. Therefore, it held that the plaintiff failed to prove title over the suit property and also as to how he became owner of the suit property. It also held that the plaintiff was not able to prove that he was adopted by the defendants and or that the defendant no.2 acted as the minor guardian of the plaintiff. Consequently, the suit filed by the plaintiff was dismissed. Feeling aggrieved by the said judgment of the trial court, the plaintiff filed R.A. No.60/2011 before the first appellate Court. The first appellate court secured the records of the trial court, heard the learned counsel for the parties and framed the following points for consideration. - 6 - NC: 2024:KHC-D:571 RSA No. 6056 of 2012 (1) Whether the trial court has committed an error in dismissing the suit. If so, this appeal is liable to allow? (2) To what order?

The first appellate court also held that the evidence of the plaintiff established that his grandfather had not executed any deed in his favour while effecting mutation in his name. He also did not produce the records of the previous proceedings that was initiated by the defendants against the father and grandfather of the plaintiff. The first appellate court after perusing the documentary evidence held that the father of the plaintiff had suffered a decree of perpetual injunction in O.S. No. 69/2000 in respect of the very same suit property and an appeal filed in R.A. No. 27/2006 was also dismissed. It held that that the plaintiff had filed the present suit after his father had lost the suit in O.S. No. 69/2000. Consequently, it held that there was no material to establish title of the plaintiff to the suit schedule property and consequently dismissed the appeal. Being aggrieved by the said judgment and decree, the plaintiff has filed this appeal. - 7 - NC: 2024:KHC-D:571 RSA No. 6056 of 2012

Learned counsel for the plaintiff submitted that the revenue documents which are marked as Exs.P.2 and P3 showed that the name of the plaintiff was entered in the revenue records concerning the land bearing Sy. No. 128 and that thereafter the defendant no.2 also got his name entered in the revenue records and this fact was not noticed by the trial court as well as the first appellate court. He submitted that O.S. No. 69/2000 was only for the relief of perpetual injunction and that he was not a party to the said suit and therefore the said judgment was not binding upon him. Alternatively, he contends since the present suit was filed for declaration and injunction, the plaintiff could maintain the suit notwithstanding a decree for perpetual injunction was granted against his father in O.S. No. 69/2000.

Per contra, learned counsel for the defendants submitted that except the self serving statement that the land was conveyed to the plaintiff, he did not produce any material to establish the same. He submitted that the suit property was allotted to the share of defendant no.2 and that he had given it for the maintenance of defendant no.1 and her name was entered in the revenue records and continued for nearly ten - 8 - NC: 2024:KHC-D:571 RSA No. 6056 of 2012 years which is evident from Exs.D.4 to D.10. Further he contends that the father of the plaintiff himself who had raised a similar claim in O.S. No. 69/2000 suffered a decree of perpetual injunction and the Court held that it was the duty of the person who was the owner and in possession to establish it. He further submitted that both the courts were justified in dismissing the suit filed by the plaintiff.

I have considered the submissions made by the learned counsel for the plaintiff as well as the learned counsel for the defendant. I have also perused the records of the trial court which are furnished by the learned counsel for the plaintiff and I have perused the judgment and decree passed by both the Courts below.

In view of disposal of the appeal, pending IAs, if any, also stand disposed off. List No.: 1 Sl No.: 43 CT-ASC SD/- JUDGE